Complainant

Respondent

Anonymised Parties

A Health Care Assistant

A Care Facility

Representatives

In person

HR Department

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00021567-001

04/09/2018

The complainant was employed at the Care Facility as a Health Care Assistant from 24th December 2016 until he was allegedly dismissed by his Team Leader on 1st August 2018. The complainant submitted his complaint of Unfair Dismissal to the Workplace Relations Commission (WRC) on 4th September 2018.

Note: The complainant named the Care Facility in question as his employer in the WRC complaint form. The complainant is employed by an Employment Agency and was placed at the Care Facility which is a service of the Health Care provider. The Health Care provider did not attend the initial adjudication hearing of this complaint on the basis that it claimed the complainant was employed by the Employment Agency. In correspondence from the WRC dated 12th November 2019, the Health Care provider was asked to note the provisions of Section 13 of the Unfair Dismissals (Amendment) Act of 1993 and was invited to attend a re-convened adjudication hearing and to make submissions on the applicability and import of Section 13 of the Act in relation to the complainant’s dismissal. The Health care provider attended the re-convened hearing on 11th December 2019.

The complainant stated that there were no issues with his employment, that he was aware of, prior to 1st August 2018. The complainant stated that he received a telephone message on that date to contact his Team Leader and when he did, he was informed that his employment was being terminated with immediate effect due to poor performance.

The complainant stated that he was alleged to have been seen carrying an item of soiled clothing between buildings without wearing gloves, that he was seen performing Yoga while at work, that he had offended a Training Officer in relation to a training request and had made inappropriate contact with the family of a service user. The complainant confirmed that these were the totality of the issues that resulted in the termination of his employment.

The complainant stated that the item of clothing in question had been washed and that he was bringing it to another building to be dried and that gloves were not required in that instance. In relation to practicing Yoga, the complainant contends that this was part of a patients care and although the team leader disagreed with the practice, it had proven to be beneficial for patients who suffered from anxiety and depression. The complainant stated that it was the Team Leader herself who suggested a written request be submitted to the Training Officer in relation to the complainant’s training needs and the only offence caused appeared to be that the request had been put in writing. In relation to the alleged inappropriate contact made to the family of a service user, the complainant stated that this relates to a comment he made in relation to a service user and the type of bed he would receive when he moved back to community living.

The complainant contends that he was summarily dismissed by the Team Leader without any disciplinary process being followed and because the Team Leader stated that he was “agency” and not a direct employee. The complainant contends that he had done nothing wrong, yet his employment was terminated which caused him significant distress and reputational damage. The complainant is seeking that he be placed back in his employment at the Care Facility for his established pattern of attendance of 84 hours per fortnight.

Mitigation of Loss

The complainant outlined that he was without any employment for approximately nine days from 1st August 2018 until 10th August 2018. From 10th August 2018 he became employed elsewhere. The complainant submitted a calculation of ongoing losses from the 1st August 2018 to the end of December 2019 which, he contends, amounts to €26,548.99.

The Health Care provider stated that the complainant was not dismissed from his employment. At the adjudication hearing on 11th December 2019, it was clarified that the complainant was no longer placed at the Care Facility due to several issues that had arisen while he was assigned there. The respondent accepts that, for the purpose of the Unfair Dismissals Acts, 1977-2015, it is the complainant’s employer, however the complainant has remained in its employment and has continued to be placed in Older People Services instead of his previous assignment to Intellectual Disability Services.

In relation to the losses claimed by the complainant, the respondent confirmed that there are significantly less hours available in Older People Services than existed in Intellectual Disability Services due to the one to one care required in the care of people with Intellectual Disabilities. The respondent further contends that there were restrictions on the use of agency staff on occasions and this would also have resulted in a loss to the complainant and that there was no guarantee that he would have been working the level of notional hours he has claimed since August 2018. Notwithstanding its response to the complainant’s losses as submitted, the respondent contends that as the complainant remains employed since August 2018, albeit at reduced hours, there has been no dismissal and the complaint should not succeed.

In relation to the respondent’s failure to attend the first adjudication hearing of this complaint in July 2019, I find this to be unsatisfactory. The actions of the respondent has resulted in a significant delay in the complainant receiving a decision on his complaint and has caused him additional stress, inconvenience and expense.

In relation to the substantive issue, if the complainant is to succeed in his complaint, it must first be established that a dismissal actually occurred within the meaning of the Act. In this case, the complainant was employed by the Health Care provider and was assigned to its Care Facility until August 2018.

The complainant’s Team Leader raised a number of issues in relation to the complainant’s conduct and work practices to the Agency which resulted in the complainant’s removal from his assigned place of work.

The complainant submitted calculations in relation to his loss of earnings from when he was assigned to Older People Services which had a reduced number of hours available and resulted in the reduction in earnings. I also note that there were some weeks where the complainant was in receipt of Jobseekers Benefit due to the lack of available shifts to him.

I note the actions of the Team Leader and the fact that the Agency appears to have removed the complainant from the Care Facility on the basis of what the Team Leader had said without giving him an opportunity to respond or before initiating any formal process on the issues raised. While I find that this was unfair on the complainant and at variance with the principles of natural justice, I also note that the complainant continued to be assigned shifts elsewhere by the Health Care Provider. Notwithstanding the unfair treatment that the complainant received, the fact that he continued to be placed in other locations by the Health Care provider, leads me to conclude that the complainant was not dismissed from his employment. Accordingly, the complaint cannot succeed.

Having considered the submissions and evidence of both parties, I find that the complainant, for the purposes of the Unfair Dismissals Acts, 1977-2015 is employed by the Health Care Provider. As the complainant has remained in its employment, albeit in a different area and on a reduced pattern of attendance for various reasons, I find that no dismissal has occurred. Accordingly, I find that the complaint of unfair dismissal is not well founded.

Unfair Dismissal, Agency work,